Ranjit Samanta vs State Of West Bengal & Anr

Tirthankar Ghosh, J

No one appears in support of the revision petition, when the matter is taken up for consideration. No accommodation is also sought for.

The revisional application has been preferred against judgment and order dated June 22, 2004 passed by the learned Additional District & Sessions Judge, Fast Track Court No. II at Hooghly in Sessions Case No. 43 of 2003 (Sessions Trial No. 32 of 2003) under Section 364 of the Indian Penal Code, wherein the learned Additional Sessions Judge was pleased to acquit the accused person of the charges levelled against him.

The prosecution case, in short, is that on August 1, 1997 at about 20-15 hours the defacto complainant addressed a written complaint to the Officer in-charge, Tarakeswar Police Station, Hooghly, to the effect that on August 1, 1997 at about 10-30 hours his son, namely, Arindam Samanta, aged about six years gave tobacco to him and thereafter went away without entering into the house. The defacto complainant along with his family members and other local people searched for him in the village, but he could not be traced out. The defacto complainant further alleged that there were many cases pending against the accused/opposite party no. 2, namely, Swapan alias Bablu Khara and he suspected that the said Swapan Khara kidnapped his son. He also alleged that prior to the incident, the accused had threatened him of serious consequences and hurled abusive language by narrating him also, that he would cause such a damage, which the family members of the defacto complainant would remember during their lifetime.

On the basis of the aforesaid written complaint addressed to the Officer in-charge of Tarakeswar Police Station, the investigation was endorsed to Sub Inspector Nirupam Ghosh and consequently Tarakeswar Police Station Case No. 66 of 1997 dated August 1, 1997 was registered for investigation. The case was thereafter handed over to Sub Inspector Subhash Ghosh, who took up further investigation of the case and submitted charge sheet against the accused person under Section 364 of the Indian Penal Code.

The case was thereafter committed to the court of sessions and the trial court was pleased to frame charge against the accused person under Section 364 of the Indian Penal Code. The charges were read over to the accused person to which he pleaded not guilty and claimed to be tried.

The prosecution, in this case, relied upon ten (10) witnesses while the defence examined none. The trial court, on conclusion of the prosecution witnesses, was pleased to examine the accused under Section 313 of the Criminal Procedure Code and thereafter invited the defence for tendering his witness. Thereafter the learned trial judge was pleased to fix date for final argument of the case and on hearing both the parties, by a judgment and order dated June 22, 2004 was pleased to acquit the accused of the charges under Section 364 of the Indian Penal Code.

The ten witnesses, so relied upon by the prosecution, included prosecution witness no. 1, namely, Ranjit Samanta being the defacto complainant and the father of the victim; prosecution witness no. 2, namely, Kajal Jana being the friend of the victim; prosecution witness no. 3, namely, Smt. Rekha Samanta being the mother of the victim; prosecution witness no. 4, namely, Sri Nirapada Samanta, the brother of prosecution witness no. 1; prosecution witness no. 5, namely, Bhajahari Samanta, another brother of prosecution witness no. 1; prosecution witness no. 6, namely, Gobindo Majhi being a co-villager; prosecution witness no. 7, namely, Chapa Samanta, another co-villager; prosecution witness no. 8, namely, Sub Inspector Subhash Ghosh being the first investigating officer of the case; prosecution witness no. 9, namely, Sub Inspector Sailendra Nath Povia, who filled formal first information report and conducted further investigation and prosecution witness no. 10, namely, Sub Inspector Nirupam Ghjosh being the second investigating officer of the case.

The prosecution also relied upon four (4) documents, which were admitted in evidence being Exhibit-1, which is the written complaint; Exhibit-3, which is the first information report; Exhibit-4 being the statement of prosecution witness no. 2 (Kajal Jana) recorded under Section 164 of the Criminal Procedure Code and the statement of Chapa Samanta, prosecution witness no. 7.

The trial court analyzed the evidence of five (5) witnesses being the prosecution witnesses no. 1 to 5. By analyzing such evidence, the trial court took into account the statement under Section 164 of the Criminal Procedure Code, which was recorded by the learned Magistrate in respect of the prosecution witness no. 2, namely, Kajal Jana. The trial court observed that the statement was recorded on August 7, 1997, that is, six/seven days after the incident and he deposed almost after six years of the incident. At the time of incident, the prosecution witness no. 2 was aged about five/six years and at the time of deposition he was aged about eleven years. The trial court then proceeded to observe that in his deposition before the court, prosecution witness no. 2 stated that on the day of occurrence, accused Bablu Khara called the victim, Arindam Samanta, by gesture and thereafter kidnapped him by boarding him in his by-cycle towards route no. 26, but in the statement which was recorded by the learned Magistrate, prosecution witness no. 2 stated that the victim, Arindam Samanta, took shelter at Bhagartala due to dazzling of rain and the accused, Bablu Khara, called him by gesture and the victim, Arindam Samanta, went away by catching his by-cycle behind him. The trial court thereafter proceeded to observe that if the victim himself accompanied the accused by holding his by-cycle, then it was difficult to believe that the accused kidnapped the victim. It has also been observed by the trial court that the prosecution witness no. 2, who was an eye-witness of the incident, in his cross-examination, stated that he had narrated such fact to the investigating officer of the case, but the investigating officer of the case being prosecution witness no. 9, in his cross-examination, categorically denied the fact that prosecution witness no. 2 had narrated the occurrence of such incident before him.

The trial court, therefore, opined that it was difficult for a child of such tender age of five/six years to form an opinion about the nature of the incident although under the law a child witness would be considered to be a valuable witness, but it was very difficult in so far as the present case is concerned to rely upon the sole testimony of this particular witness regarding the narration of the incident before the investigating officer of the case, before the learned Magistrate who recorded the statement under Section 164 of the Criminal Procedure Code and before the trial court while he was deposing.

The trial court also took into account the evidence of prosecution witnesses no. 1, 3, 4 and 5 and observed that they were not eye-witnesses to the incident and that they had inimical relation with the accused as the written complaint was addressed to the Officer in-charge of the police station on the basis of suspicion. The trial court thereafter proceeded to opine that suspicion, however, strong could not take the place of proof and, particularly, in the background of the facts and circumstances of this case, when there was inconsistency in the evidence of prosecution witness no. 2 to come to a finding of guilt on the basis of his evidence.

The trial court thereafter passed the impugned judgment and proceeded to acquit the accused.

It is settled principle of law that in a case of revision from an order of acquittal, the High Court is empowered to exercise its jurisdiction only in exceptional cases where the interest of public justice require interference for the dns correction of a manifest illegality, or prevention of gross miscarriage of justice.

It is further settled that if two views are possible - one pointing to the guilt of the accused and the other towards acquittal - the High Court, while exercising its revisional jurisdiction, should not reverse an order of acquittal on the premise that if it had re-appreciated the evidence of the trial court, an alternate view of conviction could have been arrived at.

In view of the settled proposition of law as also the reasons assigned by the trial court, I do not think that it would be fit and proper to interfere with the order of acquittal passed by the learned Additional Sessions Judge, Fast Track Court No. II at Hooghly in Sessions Case No. 43 of 2003 corresponding to Sessions Trial No. 32 of 2003 in view of the logical and cogent reasonings assigned by him while arriving at his conclusion.

As such, the revisional application bearing C.R.R. 2329 of 2004 is dismissed and the impugned judgment and order dated June 22, 2004 passed by the learned Additional District & Sessions Judge, Fast Track Court No.

II at Hooghly in Sessions Case No. 43 of 2003 (Sessions Trial No. 32 of 2003) is affirmed.

The lower court records of this case be sent down immediately.

Office is directed to communicate this order to the court below at once.